evidence, it is clear that the revision petitioner had no
control over the alleged shop when PW1 was conducting
search and seizure. If the revision petitioner was
conducting any sale of prohibited and obscene materials,
it is the primary responsibility of the prosecution to prove
the possession of the shop. When petitioner is in
possession of the room, the connected aspects such as
physical control and custody is to be proved by the
prosecution. While explaining the various situation
relating to the possession, the functional and relative
concepts have to be examined in a wider sense. The
degree of physical control exercised by the revision
petitioner is very relevant and knowledge of the person
claiming such possessory right over the thing has to be
proved.
The probative information stored in digital form in
a compact disc can be used before court as digital
evidence or electronic evidence. The digital evidence is
highly fragile and can be easily altered, damaged or
destroyed and also time sensitive. Therefore special
precaution should be taken to this document to collect
preserve and examine this evidence. No analysis of the
compact disc (hereinafter referred as CD) was made by
the investigating officer to discover the files in it. This
includes normal files, deleted files and encrypted files.
Therefore, for identification of the files in the CD digital
evidence is necessary. Identification of the type of
information stored in the disc is necessary, for this
appropriate technology can be used to extract it. Without
examining the digital data in a scientific manner, viewing
of the CD by the Magistrate, Assistant Public Prosecutor
and the Sub Inspector is unsustainable in law and their
satisfaction is not an appreciation of electronics evidence
in law. An electronic record by way of secondary evidence
shall not be admitted in evidence unless the requirements
under Section 65B are satisfied. Thus, in the case of CD,
the same shall be accompanied by a certificate in terms of
Section 65B obtained at the time of taking the documents,
without which, the secondary evidence pertaining to that
electronic record, is inadmissible. Moreover the expert
opinion under Section 45A of the Evidence Act was not
obtained relating to the stored data in electronic form. In
the absence of such a certificate and opinion, the oral
evidence to prove existence of such electronic evidence is
not sufficient to prove authenticity thereof.
However, while considering the offence under
Section 292(2)(a), the prosecution has to prove that the
accused sold, distributed and publically exhibited the
obscene materials. Simply certain CDs were seized from a
shop on the basis of information, it cannot be taken for
granted that the revision petitioner was guilty of such
crime. It is the primary responsibility of the prosecution to
prove that the accused was in possession of the shop and
the seized articles are obscene articles. In a case for
offence under Section 292 of the IPC, prosecution has to
prove that the accused sells, let to hire, distribute,
publicly exhibits or in any manner puts into circulation, or
for purposes of sale, hire, distribution, public exhibition or
circulation, makes, produces or has in his possession any
obscene book, pamphlet, paper drawing, painting,
presentation or figure or any other obscene object
whatsoever as alleged by the prosecution. There must be
direct evidence with regard to the possession or sale of
the obscene books or articles. There is no presumption
with regard to possession, mere fact that some books
were seized from a particular shop by a police officer.
There may be exceptional cases, where the rule of
presumption applies. In such cases, the proved facts and
circumstances may speak for themselves and court may
be justified in reaching a conclusion in the light of
available evidence.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE P.D.RAJAN
15TH DAY OF DECEMBER 2015
Crl.Rev.Pet.No. 3780 of 2006 ( )
KONNADAN ABDUL GAFOOR
Vs
THE STATE OF KERALA
Citation: 2016 CRLJ 2647
